Murugathal vs M.Palanisamy
2021 Latest Caselaw 23384 Mad

                                                                           CRP.NPD.No.1052/2019




                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 30.11.2021

                                                        CORAM:

                                    THE HONOURABLE MR.JUSTICE S.S.SUNDAR

                                              CRP.NPD.No.1052/2019

                                                [Video Conferencing]

                    1.Murugathal
                    2.Sakthivel
                    3.Saraswathi                                            .. Petitioners

                                                         Vs.
                    1.M.Palanisamy
                    2.M.Subramaniam
                    3.A.Amsaveni
                    4.A.Shanmugasundaram
                    5.A.Vasanthamani
                    6.G.Sivabagyam
                    7.G.Nandhakumar
                    8.Krishnapriya                                          .. Respondents

                    Prayer:- Civil Revision Petition filed under Section 115 CPC to set aside the
                    order passed in I.A.No.1219/2018 in O.S.No.1445/2018 dated 15.02.2019
                    on the file of the learned 1st Additional District Munsif Court, Coimbatore
                    with exempiary costs to the petitioners.

                                      For Petitioners          :   Mr.K.Balakrishnan
                                      For Respondents          :   Mr.S.Karthikei Balan


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                                                                                     CRP.NPD.No.1052/2019




                                                             ORDER

(1) This Civil Revision Petition is filed by the revision

petitioners/defendants 1 to 3 in the Suit in O.S.No.1445/2018

rejecting the application which was filed by the revision

petitioners/defendants 1 to 3 in I.A.No.1219/2018 to dismiss the

main Suit as one barred by principle of res judicata.

(2) Brief facts that are necessary for the disposal of this Civil Revision

Petition are as follows:

(3) The respondents in this Civil Revision Petition as plaintiffs filed the

Suit in O.S.No.1445/2018 on the file of the learned 1 st Additional

District Munsif Court, Coimbatore for permanent injunction

restraining the revision petitioners/defendants 1 to 3 and their men

from interfering with their peaceful possession and enjoyment of

the Suit property.

(4) The further prayer in the Suit is also for injunction restraining

defendants 5 to 8 in any way giving any permission or license or

approval to defendants 1 to 4 for forming a lay out in the Suit

property. The third prayer is for an injunction to restrain the

CRP.NPD.No.1052/2019

defendants from in any way alienating or encumbering the Suit

property. During the pendency of the Suit, the revision petitioners

filed an application in I.A.No.1219/2018 to dismiss the Suit as

barred by principle of res judicata. The said application is filed

under Section 11 read with Section 151 of CPC. The case of the

revision petitioners before the Trial Court was that the dispute

between the petitioners and the respondents had already been

decided in an earlier Suit by the learned 3rd Additional District

Munsif Court, Coimbatore in O.S.No.1657/1995, stating that the

decree in the Suit was also upheld by the Appellate Court in

AS.No.94/2001 by judgment and decree dated 20.08.2001.

(5) It is stated in the counter affidavit filed by the respondents that the

Suit is not barred by principle of res judicata. It is admitted that

previous Suit in O.S.No.1657/1995 was filed by the revision

petitioners for declaration of their title to the Suit property and for

delivery of possession. However, it is pointed out that the

respondents/plaintiffs were in physical possession of the property

when the earlier Suit was filed, and it is their specific contention in

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the present Suit that the plaintiffs in the previous Suit did not

execute the decree for recovery of possession pursuant to a

compromise between parties. Therefore, on the strength of their

possession and on the ground that the decree in the earlier Suit is

not executable, the present Suit appears to have been filed. The

Lower Court found that the issue involves disputed questions of

fact and law and therefore, the Court is not desirous of dismissing

the Suit on the ground of res judicata.

(6) This Court is unable to find any illegality in the order of the Lower

Court. First of all, the revision petitioners cannot maintain an

application under Section 11 read with Section151 of CPC as it was

filed. Having regard to the pleadings and the case of revision

petitioners an application under Order VII Rule 11 will be

appropriate.

(7) If an application under Order VII Rule 11 CPC has to be filed on

the ground that the suit is barred by any law, the Court is expected

to decide on the basis of averments made in the plaint and not on

the basis of any materials or particulars that may be stated in the

CRP.NPD.No.1052/2019

written statement or supplied by the defendants in the course of

trial.

(8) Secondly, this Court is able to see that the Suit filed by the

respondent is on the basis of cause of action arose after the earlier

Suit was disposed of. Whether the statements on facts found in the

plaint are true or not cannot be decided summarily either in the

application filed by the petitioner before the Lower Court or by way

of an application under Order VII Rule 11 CPC.

(9) In view of the settled position of law, this Court is not inclined to

entertain the Civil Revision Petition as the petitioners cannot

maintain either an application under Order VII Rule 11 CPC or an

application under Section 11 read with 151 of CPC to strike out the

Suit itself. Hence, the Civil Revision Petition is liable to be

dismissed.

(10) However the order in the present Civil Revision Petition affirming

the order of Trial Court cannot be understood that this Court has

expressed its opinion on the merits of the petitioners claim that the

Suit is barred by principles of res judicata. This Court grants

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liberty to the revision petitioners to agitate their claim in the main

Suit and the Trial Court is expected to frame appropriate issue and

decide the same on merits in accordance with the law. The request

of the learned counsel for the petitioners to direct the Lower Court

to decide the issue as a preliminary issue cannot be countenanced

as the issue involves disputed questions of fact, especially in the

present case where several facts are interlinked to sustain the

respective claims of parties. However, the Trial Court is directed to

dispose of the Suit in O.S.No.1445/2018 as expeditiously as

possible, preferably within the period of four months from the date

of receipt of a copy of the order.

(11) With the above observations, the present Civil Revision Petition

stands dismissed. No costs.

30.11.2021 cda Internet : Yes

To The 1st Additional District Munsif Court, Coimbatore.

CRP.NPD.No.1052/2019

S.S.SUNDAR, J.,

cda

CRP.NPD.No.1052/2019

30.11.2021

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